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2007 DIGILAW 76 (CAL)

RAJ NANDAN CHOUDHURY v. STATE OF WEST BENGAL

2007-02-12

DEBIPRASAD SENGUPTA, PRANAB KUMAR DEB

body2007
PRANAB KUMAR DEB, J. ( 1 ) THIS is an application for modification and/or rescinding of the order dated 22nd November, 2006 passed by the Division Bench in w. P. 16736 (W) of 2006, whereby direction was given to the Director, C. B. I. to make a thorough investigation of the matter relating to the disappearance of one Lalon Chowdhury from police custody. ( 2 ) APPEARING on behalf of the State of West Bengal, Mr. Nisith adhikary, learned Additional Advocate General, has submitted that the petitioner approached the Hon'ble Court with a prayer for a direction upon c. B. I. to enquire into the alleged disappearance of Lalon Chowdhury, suppressing the fact that direction had already been given by the learned cjm, Howrah to DSP, Town South Howrah to investigate the case. Since investigation had already been launched by DSP, Town South Howrah, as directed by the learned CJM, Howrah, there is no scope for parallel investigation being conducted by C. B. I. ( 3 ) CHALLENGING the authority of the C. B. I. to investigate the case without the consent of the State Government, Mr. Adhikary has argued that the matter squarely falls within the purview of the State subject and, as such, C. B. I. cannot usurp the power of the State Government regarding investigation of cognizable offence occurring well within the territorial jurisdiction of a State. Referring to the Government of India Act, 1935 (Entry 39 of list I, 7th Schedule) and (Entry 3 of list II, 7th Schedule) of Govt. of india Act, 1935 and The Delhi Special Police Establishment Act, 1946, it is submitted that extension of power and jurisdiction of members of police force could not be effected without the consent of the Government of the province or the Chief Commissioner. Similar provision has been incorporated in Entry 80 of list I, 7th Schedule and Entry 2 of list II, 7th Schedule. Encroachment upon the jurisdiction of a state subject by another authority without the consent of the concerned State Government is totally unwarranted, as contended by Mr. Adhikary. Actually, in Hari Singh v. State of U. P. , reported in (2006)2 C Cr LR (SC) 366, the Apex Court has underlined the proposition that the Court cannot direct C. B. I. to make an enquiry of a cognizable offence without the consent of the State Government, as submitted by Mr. Adhikary. Adhikary. Actually, in Hari Singh v. State of U. P. , reported in (2006)2 C Cr LR (SC) 366, the Apex Court has underlined the proposition that the Court cannot direct C. B. I. to make an enquiry of a cognizable offence without the consent of the State Government, as submitted by Mr. Adhikary. ( 4 ) ANNEXING the copy of the Civil Appeals No. 6249 - 6250 of 2001 in the matter of State of West Bengal and Ors. v. The Committee for Protection of Democratic Rights, West Bengal and Ors. , it is submitted that in view of the public importance, the matter as to whether the Court can order C. B. I. established under the Delhi Special Police Establishment Act, 1946 to investigate a cognizable offence, which is said to have taken place within the territory of a state without the consent of the State Government has now been referred to the Larger Bench. The Larger Bench being in seisin of the matter, the C. B. I. should not be directed to investigate a cognizable offence without the consent of the State Government. ( 5 ) APPEARING on behalf of the petitioner Mr. Dhiraj Trivedi, learned counsel, has submitted that in view of the lackadaisical attitude of the police officials to make any enquiry over the incident of disappearance of a person from police personnel, the Hon'ble Court directed C. B. I. to make an investigation. It is submitted that the State Government officials were quite loath to conduct enquiry as to the role of the police officials in the matter of disappearance of a person from police custody. Accordingly, the Hon'ble court directed investigation by the C. B. I. for revelation of the truth and for ascertainment of the real fact. Tardy investigation having been conducted by the high police officials, no fruitful purpose would be served by directing reinvestigation by other high officials of the State Government. ( 6 ) REFERRING to the case of Shyamal Kumar Dhar and Am, v. State and ors. , reported in 1998 Cal WN 154, it is submitted that in similar circumstances of missing of a girl, the Hon'ble Court directed C. B. I. to investigate the case in the wake of the failure of the CID, West Bengal to trace out the missing girl. , reported in 1998 Cal WN 154, it is submitted that in similar circumstances of missing of a girl, the Hon'ble Court directed C. B. I. to investigate the case in the wake of the failure of the CID, West Bengal to trace out the missing girl. Brushing aside the State Government contention that such an enquiry could not be directed without the consent of the State government, it was held that Section 6 of the Act would not apply in the event of the Court giving direction to C. B. I. to conduct an investigation. Referring to the case of The Committee for Protection of Democratic Rights and Anr. v. State of West Bengal and Ors. , reported in (2001)2 Cal LT (HC) 526 : (2001)2 Cal HN 98, it is submitted that when there is strong reservation about impartiality and fairness in investigation by State police, independent agency like C. B. I. should be entrusted with the task of holding an enquiry. Strong reliance has also been placed on the case of Inder Singh v. State of punjab and Ors. , reported in AIR 1995 SC 312 , to substantiate the contention that in view of the total failure of the state agency to locate the persons alleged to have been abducted by senior police officials and other police personnel using their official machinery, independent investigation C. B. I. should be conducted. ( 7 ) IT is record that one Lalon Chowdhury was taken into the police custody in connection with the alleged murder of a person. He was not seen alive thereafter. The investigating agency sought to play it down, claiming that a person called Bhim Mohanty took custody of Lalon chowdhury after his interrogation. The person also made a statement to that effect. That man was in no way related to Lalon Chowdhury. Custody was given in favour of such person without intimating the near relations of lalon Chowdhury. The near relations of Lalon Chowdhury were kept completely in the dark as to the whereabouts of Lalon Chowdhury. The disappearance of Lalon Chowdhury in mysterious circumstances and the effort being made by high police officials to shield the officials at fault prompted the Court to direct investigation of the matter by C. B. I. As underlined by the Apex Court in Inder Singh v. State of Punjab and Ors. The disappearance of Lalon Chowdhury in mysterious circumstances and the effort being made by high police officials to shield the officials at fault prompted the Court to direct investigation of the matter by C. B. I. As underlined by the Apex Court in Inder Singh v. State of Punjab and Ors. (supra), where there are grave doubts about the sincerity of the senior police officials to enquire into the alleged abduction of a person by police officials, there should be investigation by independent authority like Central Bureau of Investigation. Similar view was taken in The Committee for Protection of democratic Rights and Anr. v. State of West Bengal and Ors. (supra ). ( 8 ) THE question as to whether the Court can direct investigation of a cognizable offence by the C. B. I. without the consent of the State Government came up for consideration in State of Bihar and Anr. v. Ranchi Zila Samta party and Anr. , reported in AIR 1996 SC 1515 . Disowning the State government's view that investigation of the Central agency could not be directed by the High Court without the consent of the State Government, the Apex Court considered the direction given by the High Court to C. B. I. to investigate the case to be just and proper. As underscored in the State of west Bengal and Ors. v. Sampat Lal and Ors. , reported in AIR 1985 SC 195 , sanction envisaged under Section 6 of Delhi Special Police Establishment act, 1946 would not be required when the Court gives direction to the C. B. I. to conduct an investigation. The Division Bench directed investigation of the mater by the C. B. I. in view of the doubts being raised about the impartiality of the state officials to conduct a proper enquiry of the alleged disappearance of a person from police custody. There are materials which tend to indicate that efforts have been made to play the incident down. The explanation offered by the investigating agency of the State Government was not found convincing by the Division Bench. The Court viewed that there should be an investigation of the incident relating to the disappearance of a person from police custody by an independent agency. The erring officers, if any, should be brought to book to ensure people's confidence in such sensitive issues. The Court viewed that there should be an investigation of the incident relating to the disappearance of a person from police custody by an independent agency. The erring officers, if any, should be brought to book to ensure people's confidence in such sensitive issues. Viewed from all these aspects, we do not consider any justification for recalling or modifying the earlier order regarding investigation of the matter by C. B. I. ( 9 ) IN the result, the application being C. A. N. No. 8830 of 2006 in connection with W. P. No. 16736 (W) of 2006 stands rejected. The C. B. I. .